Speaking at a
press conference to mark his first 100 days in office, Barack Obama made
two bold claims about the policies he has already implemented to tackle the
executive overreach of the Bush administration, with regard to detention and
interrogation policies in the "War on Terror."

"We have rejected the false choice between our security and our ideals
by closing the detention center at Guantánamo Bay and banning torture
without exception," the President said.

Unfortunately, neither claim is strictly true, as I aim to demonstrate in
two articles, with particular reference to the three
executive orders that Barack Obama issued as one of his first acts as president.

In the first order, which is the focus of this article, Obama stipulated
that Guantánamo would close within a year. He also established an inter-departmental
review of the cases of the remaining prisoners, a requirement to assess whether
the prison conformed to the standards required by the Geneva Conventions, and
a request for the reviled system of trials by military commission at Guantánamo
(the "dark side" of the law, as envisaged by Dick
Cheney and David Addington) to be halted for four months. The second and
third orders will be dealt with in the following article, looking at Obama’s
progress on "banning torture without exception."

A Misleading Statement, and Too Few Released Prisoners

While Obama is to be credited for issuing these orders, his decision to state,
"We have rejected the false choice between our security and our ideals
by closing the detention center at Guantánamo Bay," rather than,
"We have rejected the false choice between our security and our ideals
by ordering the closure of Guantánamo by January 20, 2010," is
rather too economical with the truth for my liking.

Moreover, while the review established by Obama, which is being "conducted
with the full cooperation and participation" of the attorney general;
the secretaries of defense, state, and homeland security; the director of national
intelligence; and the chairman of the Joint Chiefs of Staff, got off to a flying
start, it has, to date, accomplished very little. Just one prisoner, Binyam
Mohamed, has been released, and this, it must be noted, only came about
because the story of his "extraordinary rendition" and torture, which
was the subject of court cases on both sides of the Atlantic, meant that he
was fast-tracked to the top of the list to avoid embarrassment to either government.
And beyond Mohamed, only one other prisoner – the Yemeni doctor, Ayman
Batarfi – has been cleared for release.

The Ongoing Problems of Clearing Prisoners and Rehousing Them

At this rate, of course, it will take decades to close Guantánamo,
but last Wednesday, on a visit to Europe, Attorney General Eric
Holder stated that, as a result of the administration’s ongoing review,
around 30 prisoners would soon be ready for release. He added that the Justice
Department would be approaching allies about taking specific prisoners "within
weeks as opposed to months," but he did not explain whether the 30 prisoners
he was referring to were new cases examined as part of the review, or whether
they included some or all of the 60 or so prisoners who have already been cleared
for release.

About
40 of these men were approved for release after their cases were reviewed
by multiple military review boards at Guantánamo, and the rest were
ordered to be
freed by courts on the U.S. mainland within the last six months, when,
after long delays, the lower courts were finally empowered to review the prisoners’
claims for habeas corpus, following last June’s Supreme Court ruling in Boumediene
v. Bush.

The distinction is important, as it would be distressing to discover that
the Obama administration felt the need to revisit decisions already made by
the U.S. military, but it would not be entirely surprising if this were the
case, because the administration has already caused spikes of discontent in
the courts, where certain judges appear to be coming to the conclusion that
the administration seems to regard its own review process as more significant
than the habeas reviews.

Mutiny in the Courts

Just three weeks ago, AFP
reported that two habeas judges had made a rare public show of their impatience
with government prosecutors. Judge Colleen Kollar-Kotelly, appalled by a government
lawyer who "repeatedly missed deadlines" in the cases of four Kuwaiti
prisoners, wrote that his "compliance was not optional," and added
that the court had "serious concern about counsel’s ability to read and
comprehend its orders." Judge Emmet Sullivan was equally outraged by government
lawyers’ "repeated" delays in providing unclassified exculpatory
material to the defense in the case of a Yemeni prisoner. Judge Sullivan said,
"To hide – and I don’t use that word loosely – to hide relevant and exculpatory
evidence from counsel and from the court under any circumstance … is fundamentally
unjust, outrageous, and will not be tolerated." Threatening to sanction
the government, he added, "How can this court have any confidence whatsoever
in the U.S. government to comply with its obligation and to be truthful to
the court?"

Speaking to AFP, David Cynamon, a lawyer for the Kuwaitis, stated his belief
that the government was "trying to delay these cases until the review
team can make decisions without pressure," and another lawyer said, "The
Obama administration would probably prefer that some cases stop for a while."
These were worrying comments, although there seems little reason to doubt them,
but an additional assertion by the second lawyer, that "the habeas lawyers
have represented these men for four or five years and are not content to wait
any longer," was particularly relevant, because, after the long struggles
it took to secure legal rights for the prisoners in Boumediene, and
to rein in the executive over the course of seven years, it was unsurprising
that both judges and lawyers would be perturbed to find themselves apparently
overridden by the executive again.

Focus on the Uighurs

These are not the only troubles. When it comes to the prisoners who have already
been cleared for release, it has long been known that the majority of these
men face enormous problems, because they are from countries such as Algeria,
China, Libya,
Tunisia,
and Uzbekistan, and there are fears that they will face torture if they are
repatriated (as prohibited in the UN
Convention Against Torture). However, as I reported
in March, six Saudis have been cleared since before Obama came to power,
and yet they still languish at Guantánamo, despite a long-established
rehabilitation program in Saudi Arabia that has seen the successful return
and reeducation of the majority of Guantánamo’s Saudi prisoners.

In addition, the administration has dragged its heels over the
Uighurs, Muslims from China’s Xinjiang province, who comprise 17 of the
23 prisoners whose release was ordered after their habeas reviews, but who
are still held in Guantánamo. (To date, just
three men have been released since being cleared by the courts.)

The release of the Uighurs into the United States was ordered last October
by District Court Judge Ricardo Urbina, in a ruling that was notable for his
assertion that, because the government had accepted that it had no case against
them, their continued detention was "unconstitutional," and that,
because no other country could be found that was prepared to enrage China by
accepting them, they should be accepted onto the U.S. mainland. Shamefully,
the
Bush administration appealed, and the new government did nothing in response
when, on Feb. 18, a notoriously conservative appeals court reversed
Urbina’s principled ruling.

This impasse, too, may soon be coming to an end, if reports last week are
to be believed. According to a report in the Los
Angeles Times last week, the Obama administration was preparing to
admit into the United States as many as seven of the Uighurs, even though the
decision "is not final and faces challenges from within the government,"
in particular from the Department of Homeland Security. As the Times
also explained, however, administration officials "believe that settling
some of them in American communities will set an example, helping to persuade
other nations to accept Guantánamo detainees too." This is undoubtedly
correct, as European countries, still shocked by the brusqueness with which
Bush officials – and even the president himself – demanded that they help out,
while refusing to do anything themselves, need positive encouragement to help
clear up what is widely regarded as America’s mess.

To his credit, Eric
Holder noted this in a speech during his European visit, when he stated,
"I know that Europe did not open Guantánamo and that in fact, a
great many on this continent opposed it, but as we turn the page to a new beginning,
it is incumbent on us all to embrace new solutions, free from the rancor and
rhetoric that divided us in the past." However, it still remains the case,
as I have been explaining since Obama came to power, that accepting
the Uighurs into the U.S. would be the most effective way to break this
particular deadlock.

A Sleight of Hand on Detention Policies, and Further Concerns in Court

Even if the Uighurs’ resettlement goes ahead, this is still not the end of
the Obama administration’s problems with Guantánamo. In March, in a
court filing that introduced the "current, novel type of armed conflict"
as a replacement for the Bush administration’s "War on Terror," the
government also dropped the use of the term "enemy combatant," but,
crucially, maintained a similar definition for the now nameless prisoners as
the one invented by its predecessors. Whereas Bush had insisted that he could
hold people outside the law who were "part of, or supporting, Taliban
or al-Qaeda forces or associated forces that are engaged in hostilities against
the United States or its coalition partners," the new administration kept
this definition largely intact, but added that individuals who supported al-Qaeda
or the Taliban were "detainable only if the support was substantial."

As I
wrote at the time, this supposed change was actually worthless, as a close
inspection of the government’s assertions revealed that it proposed to detain
someone who never even "attempted to commit any act of depredation or
entered the theater or zone of active military operations" and may only
have stayed in a house associated with those who did engage in militancy. It
was, moreover, noticeable that the government’s whole approach perpetuated
the Bush administration’s myth that it was justifiable to equate the Taliban
with al-Qaeda, even though one was a government (however reviled) and the other
was a small group of terrorists.

In a response filed shortly after the government announced its sleight of
hand, lawyers for some of the Guantánamo prisoners argued, as SCOTUSblog
described it, that the new government was "still asserting too much
authority. The president, they contended, is engaging in ‘impermissible
lawmaking’ by the executive branch, intruding on Congress’ powers."

Last week, the habeas cases took another turn, when Judge Reggie B. Walton
largely supported the government’s position, but warned that he was laying
down some inviolable "limiting principles." As SCOTUSblog
again explained, he "rejected arguments by detainees’ lawyers that only
an individual who was taking part in active hostilities against the U.S. at
the time of capture could be detained," although he said he had some "distaste
for the government’s reliance on the term ‘support’ at all," and also
made it clear that he was only prepared to accept the terms "substantially
supported" and "part of" if they were "interpreted to encompass
only individuals who were members of the enemy organization’s armed forces,
as that term is intended under the laws of war, at the time of their capture."

Expanding on his chosen definition, Judge Walton also stated, "Only persons
who receive and execute orders from the enemy’s command structure" could
be held as members of enemy armed forces, adding, "The key question is
whether an individual receives and executes orders from the enemy force’s combat
apparatus. … The individual must have some sort of ‘structured’ role in the
‘hierarchy’ of the enemy force." This, he stated, could include those
who "provided housing, feeding or transporting ‘al-Qaeda fighters,’ such
as a cook who was a part of the armed forces but was temporarily assigned only
a non-combat role," but he averred that it did not include "civilians
who may have some tangential connections to such organizations," adding
that "[s]ympathizers, propagandists, and financiers" who had "no
involvement" with the command structure, even if they were "members
of the enemy organization in an abstract sense," could not be held unless
they took "a direct part in hostilities."

This was sufficiently different from the views of other judges – for example,
Judge Richard
Leon, who "has been using a detention definition that gives the government
more authority than the Obama administration now claims" – for SCOTUSblog
to note, "Sooner or later, the Supreme Court may have to sort it all out."

Nearly a year after Boumediene, this wrangling is doing nothing to
address the Supreme Court’s concern that "the costs of delay can no longer
be borne by those who are held in custody," but from my point of view
the main problem is not with the courts’ attempts to work out where the lines
should be drawn, but with the Obama administration’s close adherence to its
predecessor’s rationale, which does not bode well for the outcome of Obama’s
review and makes me wonder if other disturbing developments are in store.

Certainly, there have been other disappointments. In February, the Pentagon’s
review
of conditions at Guantánamo concluded that they met the standards
required by the Geneva Conventions, even though, at the time, a hunger strike
was raging and at least 20 percent of the prison’s population was being brutally
force-fed, and beaten if they resisted; and the initial expectation that the
military commissions would not be resuscitated at the end of the four-month
review period is now looking a shade more dubious at least.

Will the Military Commissions Be Revived?

Also in February, I
complained that the Pentagon, under Defense Secretary Robert Gates (unnervingly,
the same man employed by George W. Bush), retained other Bush officials in
worryingly high places (Susan
Crawford, for example, a protégé of Dick Cheney and a close
friend of David Addington, who oversees the military commissions), and a week
after Obama took office the commissions’ recently appointed chief judge, Army
Col. James M. Pohl, refused to suspend the arraignment of the Saudi prisoner
Abdul
Rahim al-Nashiri, until it was called off by Crawford. In what appeared
to be a snub to the new president, Col. Pohl stated that "he found the
prosecutors’ arguments, including the assertion that the Obama administration
needed time to review its options, to ‘be an unpersuasive basis to delay the
arraignment.’"

After this, the commissions went quiet, but on Wednesday Col. Patrick Parrish,
the judge in the case of Omar
Khadr, the Canadian who was just 15 years old when he was seized, half-dead,
after a firefight in Afghanistan in July 2002, notified
his lawyers that pre-trial hearings would recommence on June 1, unless
he was notified to the contrary by the government. This means that either Col.
Parrish is being somewhat provocative or he expects the administration to press
ahead with the trials after the four-month freeze expires (as the New
York Times suggested in a worrying article on Saturday, in which senior
officials, speaking anonymously, said that "administration lawyers have
become concerned that they would face significant obstacles to trying some
terrorism suspects in federal courts"). Either way, it is a troubling
development for those who hoped that the administration would shut down the
commissions without hesitation and resist all calls to reinstate them, amend
them, or set up another novel and untried system, and would, instead, move
the prisoners regarded as genuinely dangerous to the mainland to face trials
in federal court.

The Dark Specter of Preventive Detention

According to Lawrence Wilkerson, Colin Powell’s former chief of staff, "no
more than a dozen or two of the detainees" held in Guantánamo ever
had any worthwhile intelligence. Wilkerson’s statement, included in a
column he wrote in March, was particularly significant, as it should indicate
that no more than two dozen prisoners should face a trial, and that the rest
– though many were low-level fighters for the Taliban – should be released.

However, within hours of President Obama’s 100 Days speech, in a genuinely
disturbing development that mirrors what Robert Gates’ former masters used
to say with monotonous regularity, the
defense secretary announced to members of the Senate Appropriations Committee
that the question was "still open" as to what the government should
do with "the 50 to 100 [prisoners] – probably in that ballpark – who we
cannot release and cannot try."

Back in Bush’s day, these same men were sometimes referred to as those who
were "too dangerous to release but not guilty enough to prosecute"
– essentially because the supposed evidence against them was extracted through
the use of torture or coercion. Regardless of how they are described, however,
the notion that there is now an acceptable "third way" between the
guilty and not guilty verdicts delivered in a courtroom is almost incredibly
disturbing, not only because, yet again, it attempts to exert executive authority
over the courts’ ongoing habeas reviews, but also because it will undoubtedly
play into the hands of those lawyers – including Neal
Katyal, a law professor who helped overthrow the first incarnation of the
military commissions in June 2006 (in the case of Salim
Hamdan) – who have recently taken positions in the government (Katyal is
the principal deputy solicitor general) and are advocating for a system of
preventive detention to be established.

Just think about it: These are men against whom the information that purports
to be evidence was often gathered by extremely dubious or downright illegal
means, including the use of torture. It cannot therefore be used in a U.S.
court, although real evidence – such as the kind based on detective work or
non-coercive interrogations – can. And yet, because of a suspicion that, if
they were to be released, these men would at some point in the future commit
an offense, we are told, by those advocating a system of preventive detention,
that they should be imprisoned forever on the basis of secret evidence.

As Kenneth Roth, the executive director of Human Rights Watch, explained
in March, "A regime of preventive detention would be perilous for
the liberty of U.S. citizens and others. It would enable the U.S. government
to detain individuals for an indeterminate period based on predictions about
the danger they might pose in the future, rather than on provable crimes that
they had actually committed."

You can draw whichever dystopian conclusion you wish, so long as it’s one
of the following:

That’s the same as Guantánamo.

You can’t imprison people, based on evidence that can’t be tested, for
what they may or may not do in the future.

9624 Responseshttp%3A%2F%2Foriginal.antiwar.com%2Fworthington%2F2009%2F05%2F03%2Fa-start-on-guantanamo-but-not-enough%2FA+Start+on+Guant%C3%A1namo%2C+but+Not+Enough2009-05-04+04%3A00%3A23Andy+Worthingtonhttp%3A%2F%2Foriginal.antiwar.com%2F%3Fp%3D962 to “A Start on Guantánamo, but Not Enough”

everyone is missing the point about the Military Commissions Act was a tool used by then president non-elect Bush, to then be able to justify charging any citizen on U.S. soil as an 'enemy combatant' and then having the legal justification to scoop up dissidents and members of the opposition within the government, confiscated their bank accounts, take their physical property, and hastily, without a trial, incarcerate them. All this was done under the ruse that ultimately it would always be merely
enemy combatants and never just everyday American citizens. Once this got pushed thru the wholly co-opted and blackmailed congress and senate, it gave the president, non-elect, enough power to stifle almost all dissent because, as you know, anyone could be then labeled as an 'enemy combatant' and shipped off to Gitmo for a really all expenses paid vacation in the sun. if losing everything you own and having your property and financial assets seized by your government and then being incarcerated for an indefinite period of time, without any hope of a trial by a jury of your peers, certainly does have a chilling effect on one's ability to voice disdain and opposition to the
illegal policies of an out-of-control and completely dicatorial government.

if you haven't caught on yet, it was a very blatant propaganda tool to stifle dissent and make people think twice about opposing this illegitimate government we had then and still have now. it's precisely 'why' it is so important that everyone understand that every single one of these really extra-Constitutional powers that the blackmailed congress and senate gave a de-facto, absolutely no bones about it 'dictator' now be rolled back and nullified under the alleged 'progressive' President Obama.

You and I know how this story ends, don't we? This new people's choice President Obama will absolutely not give up any of these new sweeping powers and if anything, I'd actually expect him to
expand them beyond what the non-elected dictator, George W. Bush, abused so greatly before he
begrudgingly vacated the office he'd illegitimately held for 8 long and tortuous, ruinously long years.

[…] about Guantánamo, and analyzed his progress — or lack of it — in closing the prison in a previous article, and in this second article I’m going to focus on his assertion that the new administration has […]

Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.